Common Fisheries Policy and Animals (Amendment etc.) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Wednesday 30th October 2019 Grand Committee

Moved by

[Lord Gardiner of Kimble]

That the Grand Committee do consider the Common Fisheries Policy and Animals (Amendment etc.) (EU Exit) Regulations 2019.

Relevant document: 2nd Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, this instrument makes technical amendments to ensure that retained EU law is effective and enforceable while also providing continuity to businesses and protection for the environment. No policy changes are being made and no change is expected in the way that the fishing industry conducts its activities as a result of this instrument.

The principal purpose of these regulations is to amend EU legislation that has come into effect since the previous fisheries EU exit SIs were made. This instrument will ensure that existing technical conservation measures continue to apply as part of UK law and will maintain the effective operation in UK waters of long-term plans for the sustainable management of fish stocks in the North Sea and the western waters. Where provisions confer powers to exercise legislative functions on the EU Commission or member states, those references are, generally speaking, changed to “a fisheries administration”.

The SI before your Lordships makes a number of adjustments to three pieces of retained EU legislation, but they make no changes to policy. First, it makes updates to the technical conservation regulation, which outlines technical rules that fishing vessels must adhere to for conservation purposes. This regulation is essential for the management of the fisheries activities of UK vessels wherever they are, and non-UK vessels in UK waters. The technical conservation regulation was previously made operable in retained UK law through an EU exit statutory instrument made in March 2019. However, the EU subsequently introduced revisions to that regulation in July. The UK was fully engaged in the process of revising the regulation which makes important changes, such as introducing a ban on pulse fishing from July 2021 and measures to support implementation of the landing obligation. UK fishermen are currently bound by the EU regulation, which is important to protect the marine environment, and the changes we are discussing today will ensure that they continue to fish to the latest standards by making the regulation operate in UK law.

Secondly, this SI completes the transfer of the North Sea multiannual plan into retained EU law. This establishes long-term plans for the recovery and sustainable management of mixed fisheries in the North Sea. The bulk of the legislation has previously been made operable in UK law. This SI completes the process by bringing across legislative powers necessary to introduce or amend the details of the plan. These powers to make legislation were previously conferred upon the European Commission, whereas they will now be exercisable by UK Administrations, and parliamentarians will be able to scrutinise them in a way that has not been possible hitherto.

Thirdly, this SI makes necessary amendments to the western waters multiannual plan. Almost identical to the North Sea multiannual plan, this establishes a long-term plan for the recovery and sustainable management of mixed fisheries in the western waters, of which UK waters form a part. The instrument makes minor technical changes such as amending references from “Union waters” to “United Kingdom waters” and removing references to “common fisheries policy” or “the Council” to ensure that the legislation operates correctly as part of retained EU law. We are making these amendments to this plan now as it was published only in March 2019, and we were therefore unable to include it in previous instruments.

This instrument also amends previous marine and fisheries EU exit statutory instruments—the Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2019, the Common Fisheries Policy and Aquaculture (Amendment etc.) (EU Exit) Regulations 2019 and the Common Fisheries Policy (Amendment etc.) (EU Exit) (No. 2) Regulations 2019—as a consequence of changes made to the EU regulations since those previous instruments were passed by this House. Such minor changes include: the revocation of certain regulations relating to regional fisheries management organisations and a Community Fisheries Control Agency, which have been revoked at EU level and which will therefore no longer form part of retained EU law, and a minor change to the amendments to the North Sea discard plan, which has since been amended by the Commission. This ensures that our amendments to retained EU law are up to date with the legislation which will be transferred on to the UK statute book by the European Union (Withdrawal) Act 2018 on exit day.

I am afraid that there were a number of typographical errors in these previous instruments which we have taken the opportunity to correct: for instance, replacing a reference to the singular “member state” with the plural, “member states”. We have also changed a handful of amendments to the annual EU TAC and quotas regulation, made by a previous instrument. In particular, we have amended provisions relating to commercial and recreational bass fishing to ensure continuity of approach after we leave the EU.

Finally, we have taken the opportunity to amend the Animals (Legislative Functions) (EU Exit) Regulations 2019 to prevent duplicate amendments to the retained EU law version of Council Regulation (EC) No. 1/2005 on the protection of animals during transport and related operations. In particular, it removes an unnecessary power to make regulations about animals not covered by the regulation’s annexes. This power, which was originally conferred on member states, is not necessary because we are rolling forward a power—originally conferred on the European Council—to amend the annexes themselves. Similarly, a second amendment to a technical rule for transporting horses has been removed because it duplicated an amendment made by a different instrument: the Animal Welfare (Amendment) (EU Exit) Regulations 2019. Both of these minor changes ensure that we have the tidiest—the word used here—possible statute book before exit.

I reiterate that, although I have raised some substantial matters, particularly on fisheries, these are purely technical changes that are intended to simplify the statute book. They will in no way dilute or alter the ability of the Government to maintain current standards of protection, for instance of animals.

While there is no statutory duty to consult on this instrument, as is customary we have liaised with stakeholders about future fisheries policy as well as the approach taken by this instrument and other instruments made under the EU withdrawal Act. We have worked to ensure that stakeholders understand that this SI makes necessary technical amendments to retained EU law, which will ensure that we maintain a fully functioning and up-to-date statute book. Indeed, stakeholders have expressed gratitude for our engagement with them on this and earlier instruments.

Given that this instrument relates to devolved matters, all four Administrations have given their consent to Defra laying it on their behalf. This means that the powers will be made operable for England, Wales, Scotland, and Northern Ireland after exit. As with our approach to previous fisheries instruments made under the withdrawal Act, we have worked to develop and draft the instrument in close co-operation with each Administration.

This instrument makes retained EU law effective as part of UK law in these important areas. I beg to move.

[The Duke of Montrose (Con)]

My Lords, I have a couple of questions for the Minister, whom I thank for the extensive explanation of this fairly long bit of modification to an existing statutory instrument. As the Minister mentioned, fishing is all devolved, and this will take care of converting EU legislation so that it can be used by the various Administrations. Is any consideration required, or has any taken place, on having a framework for fishing in the UK? So many of the EU powers that are being devolved could do with a UK framework as a background to allowing all these things. However, the various devolved Administrations are very protective of their powers and I realise that it must be difficult to find a framework that will fit. When my noble friend the Minister mentions tidying up the statute book, I wonder whether the Government are relying on individual businesses that are interested in this legislation to correct their own copies. There is a massive amount of alteration in this instrument and if the Government could produce an amalgamated version, that would help.

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Michel Barnier has said that a free-trade agreement could take around three years to negotiate. The Northern Ireland protocol would therefore be in effect until that agreement came into force—or, if there is no deal at the end of the transition period, it would remain in place until 2024 at the earliest. So I would be grateful if the Minister could clarify the status of the catch of Northern Ireland fishers in the different circumstances that may arise over the next four years. I know that this is a specific question, but it is important and goes to the heart of the EU withdrawal arrangements that we are discussing. I look forward to the Minister’s response.

[Lord Gardiner of Kimble]

My Lords, I am most grateful to all noble Lords for their rightly penetrating questions. I stress that the purpose of this instrument is overwhelmingly to ensure that we have the most up-to-date statute book. As I say, there are no policy changes in it.

My noble friend the Duke of Montrose and the noble Baroness, Lady Jones of Whitchurch, asked about devolution. The UK Government and the devolved Administrations have agreed that it is essential to maintain common approaches in a number of areas after we leave. We are therefore working together to develop a new UK framework made up of legislative and non-legislative elements. Clearly, the Fisheries Bill—which sets out shared objectives as a key legislative element—includes a requirement to publish a joint fisheries statement, which will be drafted jointly by the four Administrations and will contain policies that address these shared objectives. The policies in the joint fisheries statement will be binding. Non-legislative elements include a memorandum of understanding, which would build on the existing fisheries concordat and UK-wide quota management rules. We know that Parliament will be dissolved, so it is absurd for me to try to say when the Fisheries Bill will come back. This is another piece of primary legislation that, whatever the outcome of the general election, will no doubt have to be addressed.

My noble friend the Duke of Montrose and the noble Baroness, Lady Jones of Whitchurch, raised the issue of amalgamation consolidation. We all understand that EU law comprises a large number of regulations dealing with different areas. The purpose of the withdrawal Act SIs is to ensure continuity by making retained EU law operate correctly on exit. That is why—I choose these words carefully—no consolidation of the SIs themselves is planned. However, importantly, the National Archives has launched two new services. The first is a new EU exit website archive; the second is the addition of EU legislation to the Government’s legislation website, LEGISLATION.GOV.UK. This brings together the text of EU legislation and details of the UK corrections, as well as some additional features, including a timeline of the changes so far. We believe that these two services will help to aid legal certainty and support research in preparation for leaving. After we leave, the National Archives will maintain the EU legislation on LEGISLATION. GOV.UK, incorporating amendments made by the UK into the texts.

[Baroness Jones of Whitchurch]

Can I clarify something? When we had the briefing earlier, we talked about there being almost a master version that people could access, even if it was not widely published. The Minister implied that this is not what the National Archives is doing. Can he clarify that there will be a master document that brings all this together and which is easily accessible for all stakeholders and businesses who want to access it?

[Lord Gardiner of Kimble]

Yes, I can. My purpose in reading out, “This brings together the texts of EU legislation and details of the UK corrections”, is precisely this: I think that we discussed it at earlier meetings and it makes common sense. The only way that I can understand any of this—my goodness me, we have done more than 180 of these—is to read the Explanatory Memorandum rather than the SI. Unless one has that amalgamation or consolidation, the SIs alone are very difficult to decipher. That is precisely why I read out what I did about the work that is going on: so that there will be clarity and understanding.

My noble friend Lady Neville-Rolfe asked about the all-important issue of enforcement. In England, our enforcement system is delivered by a number of agencies working in partnership—in particular, the Marine Management Organisation, or MMO, the Inshore Fisheries and Conservation Authority and the Royal Navy. Patrols are undertaken by the Royal Navy’s offshore patrols vessels, and physical checks and surveillance by the MMO, using a combination of monitoring systems including vessel monitoring, electronic reporting and data systems and remote electronic monitoring. Although the noble Lord, Lord West of Spithead, is not in his place, he and I went up to the MMO at Newcastle and had an interesting look at this. The noble Lord was particularly pleased because many of the officials were originally from the Royal Navy. There is a recognition that there will be an increase in control and enforcement capability, including increased personnel to train as warranted marine enforcement officers and act in support roles at the MMO, and greater levels of aerial and surface surveillance.

I should probably say that control and enforcement is a devolved matter. Nevertheless, Defra, the Scottish Government, the Welsh Government and the Northern Ireland Executive are working closely together to share information and ensure a robust approach to monitoring, compliance and enforcement across UK waters.

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[Baroness Neville-Rolfe]

I am not sure that I am allowed to comment, but I was rather reassured by the list that that my noble friend read out and the fact that the Navy will now be more involved—as indeed it used to be historically, before Defra experienced cuts. It feels as though fisheries, if we get Brexit, will become a more important national asset, which will therefore justify the expenditure. I hope that that will be respected by Ministers when they come to look at these budgets.

[Lord Gardiner of Kimble]

The interventions by the noble Lord and my noble friend have inspired me to say a little more. Currently, we have two Royal Navy Batch One offshore patrol vessels assigned to fisheries protection duty. Over time these will be replaced by five, more capable, Batch Two OPVs. In addition, the MMO has appointed three commercial operators to be on standby to provide extra boats for enforcement duties, should additional support be required. The point which the noble Lord made is of course a challenge to whoever has those responsibilities, but my noble friend is absolutely right. On sustainable fisheries and ensuring that those principles are adhered to, my guess is that there will be a strong public feeling—a strong desire—given the responsibility in UK waters for that. A Government would be brave to start trimming that when there could be that potential pressure.

[Baroness Neville-Rolfe]

My noble friend can rely on us to make it clear if we feel that not enough is being done in this important area of sustainability and its enforcement.

[Lord Gardiner of Kimble]

I have no doubt that that will be the case with all your Lordships—noble friends and noble Lords—and rightly so. Clearly, if we do not have sustainable fisheries in the end, we will have no fish, and that cannot be good for the ecosystem or for food production.

The noble Lord, Lord Teverson, again asked for reassurances on dates. If the EU introduces new fisheries measures between now and whenever, obviously we will want to make them operable so that everyone concerned in this world would have an up-to-date statute book.

My noble friend Lady Neville-Rolfe and the noble Baroness, Lady Jones of Whitchurch, mentioned errors. I am conscious of that and I take responsibility—and of course, it drives me mad. There is a normal checking process, which includes second and third-eyes checks by Defra and other government lawyers. They are also checked by policy officials and lawyers in the devolved Administrations, as well as being scrutinised by the JCSI. All government departments have rigorous checking procedures for EU exit SIs, and indeed any SI. All I can say is—I do not mean this glibly—is that I very much regret even a single one, let alone the number that I have had to explain to your Lordships. We are distinguished to have the Secondary Legislation Scrutiny Committee’s chairman, my noble friend Lord Hodgson, observing our deliberations. I know that the department replied to all the points made by the committee.

On the question of governance, the oversight function that the Commission currently holds over member states could, for example in England, definitely be taken on by the OEP, as detailed in the Environment Bill. Yes, we have had a Second Reading, but we know that this will have to come back. The OEP will be capable of holding the Government to account on their compliance with environmental laws. It will be able to take enforcement action and be required to monitor our progress on improving the natural environment. It will produce its own annual reports on its activities.

My noble friend Lord Hodgson and the noble Baroness, Lady Jones of Whitchurch, referred to oversights. The issue of the power in Article 15 also requires the Secretary of State to obtain scientific evidence to support any measures contained in regulations made under that power, as well as to consult,

“such bodies or persons as appear to the fisheries administration to be representative of the interests likely to be substantially affected by the regulations”.

In addition, I should say to my noble friend Lord Hodgson that we are working with industry and NGOs to establish a replacement fisheries advisory infrastructure for the United Kingdom that can be put in place after we leave. We have a number of established models for consultation with stakeholders, work closely with fisheries science partnerships around the country and have a multi-stakeholder expert advisory group to consider EU exit issues.

I will go through some other points. I agree with the noble Baroness, Lady Jones of Whitchurch, that it is not ideal to have a fisheries SI in which there is a section on animals, but I will seek to explain why things have happened in this way. These amendments are included in the instrument because they required an affirmative SI—since the amendments deal with transfers of powers—as well as being in an instrument that we wanted to be in force for exit day. I do not want to go into the history of this but all the work was done on the basis of a certain exit date and we, as a responsible Government, felt that we had to cover all eventualities. We have all worked together, extremely collaboratively, to ensure that no one can say we have not done our work in getting the statute book where we might have needed it to be. As I say, the instrument is to ensure the law is absolutely clear from exit day. There have been other SIs related to animal health but those had already been laid in Parliament, meaning that, at the time, this SI was the best available vehicle for these changes. I agree that us securing an SI containing this subject would have been preferable but, on this occasion, given that the amendments simply remove inadvertent duplications, I plead with your Lordships to understand that we thought that this was the most appropriate instrument available.

The noble Lord, Lord Teverson, mentioned the discard ban, which the Government obviously need to address. We recognise the importance of the effective monitoring, control and enforcement of the landing obligation. For this reason, work has been undertaken this year to enhance our control and enforcement approach. For example, to complement measures to ensure that fishers have the right resources and information to be able to comply with the landing obligation, the MMO has focused its efforts on identifying non-compliance and improving the accuracy of catch recording, particularly in high-risk fisheries. Between 2018 and 2019, the MMO more than doubled the number of inspections of landings, and also nearly doubled the number of inspections at sea. The noble Lord also asked about the regional fisheries management organisations. We have applied to join the North East Atlantic Fisheries Commission but, as I think he will know better than me, we cannot join until we have ceased to be a member state.

The noble Baroness, Lady Jones of Whitchurch, asked about fisheries administration and the MMO, and how all that comes about. The powers of the MMO are set out in the Marine and Coastal Access Act 2009. It has a number of its own fisheries management functions, such as the licensing of fishing vessels. The MMO is also responsible for fisheries enforcement and has functions relating to protecting the marine environment. The MMO is included in the definition of “fisheries administration” in the statutory instruments made under the EU withdrawal Act 2018 because it carries out these key fisheries functions. She also asked about the definition of “other sensitive areas”. Article 12 is intended to protect sensitive habitats, which are defined in Regulation (EU) 2019/1241 as,

“a habitat whose conservation status, including its extent and the condition (structure and function) of its biotic and abiotic components, is adversely affected by pressures arising from human activities, including fishing activities”.

I think that answers that point.

The intriguing term “innovative fishing gear” is used in the EU measure being amended. It is generally understood as fishing gear that: improves fishing selectivity for an intended target species, or reduces or eliminates by-catch or incidental catches of sensitive species, for example marine mammals, seabirds, and marine reptiles; and reduces the impact of fishing activity on the habitat, protecting vulnerable marine ecosystems and generally reducing the impact of bottom fishing methods on the seabed. The arrangements for introducing innovative gear require scientific assessment to ensure that the standards achieved are at least equivalent to existing methods, and certainly do not have a negative impact on sensitive habitats or non-target species.

The noble Baroness, Lady Jones of Whitchurch, asked about regional co-operation. We fully intend, of course, to continue to work with other countries that share our waters. Indeed, under the United Nations Convention on the Law of the Sea—UNCLOS—the UK is obliged to co-operate on the management of shared stocks through appropriate regional and sub-regional organisations, such as the regional fisheries management organisations. This obligation will continue to apply to the UK when we leave. Formal co-operation will also continue through the Ospar Convention, where contracting parties agree policies and strategies on environmental management across the north-east Atlantic. She also raised the process of agreeing our participation in the multiannual plans. The EU regulations already apply to our fishers, as they do to other member states. We are simply making the minimum necessary changes to the wording to ensure that the plans operate correctly as part of the UK’s statute book when we are an independent coastal state. The terms and requirements of the plans, within our waters, have not changed.

The noble Baroness also asked about our devolution arrangements, which I have already mentioned. The Northern Ireland protocol in the withdrawal agreement applies EU customs legislation in Northern Ireland but excludes territorial waters extending between zero and 12 nautical miles. The protocol sets out that the Joint Committee will consider means to ensure that tariffs are not applied to direct landings of fish and aquaculture products by Northern Ireland-registered fishing vessels. This will bring these products in line with others that are of Northern Irish origin.

There was also a query about Northern Ireland fisheries fishing in UK waters rather than in Northern Ireland waters. The designation of their catches will depend on where they are landed. The implications from the tariff perspective will be determined by the destination of those landings and exports. These important matters of detail will be considered by the Joint Committee, which is chaired by both the UK and the EU.

I will look at Hansard, because I think there may have been some other technical points, but I hope that I have covered most of them. On that basis, I recommend these regulations to your Lordships.

Motion agreed.